Fifth Circuit Permits Offensive Use of Documents Subject to A/C Privilege

The Fifth Circuit has just released an opinion in Willy v. Administrative Review Bd., 423 F.3d 483 (5th Cir. Aug. 24, 2005), where the Court held that "no rule or case law imposes a per se ban on the offensive use of documents subject to the attorney-client privilege in an in-house counsel's retaliatory discharge claim against his former employer under the federal whistleblower statutes when the action is before an ALJ." In the process of reaching its decision, the court noted that federal common law, not state law, governed the analysis of the attorney-client privilege given that the claims at issue arose under federal law.